DOJ Opinion No. 043, s. 2000

DOJ OPINION NO. 043 , s. 2000 May 23, 2000 Secretary Jose T. Pardo Department of Finance Roxas Boulevard corner Vito Cruz Street Manila Sir : This has reference to your request for opinion on certain issues relating to the alternative schemes being considered by the Department of Finance, in cooperation with other government agencies, to replace the existing pre-shipment inspection (PSI) of the Bureau of Customs (BOC). Specifically, the issues raised are: "1. Whether or not the government may require importers to pay the PSI service fee; "2. Whether or not the importers may pay directly said fee to the PSI contractor; "3. Whether or not a portion of the same may be deposited in a trust fund for the account of the BOC for its computerization program; and, "4. Whether or not accreditation of qualified PSI contractors may be undertaken instead of an international bidding." The request, it appears, was precipitated by the expiration of the Government's PSI Contract with Societe Generale de Surveillance (SGS) last March 31, 2000. It is stated that President Joseph Estrada issued Executive Order No. 188 dated December 20, 1999 creating an Inter-Agency Committee to prepare the bid and tender documents and to conduct an international public bidding to select a contractor for pre-shipment inspection and other related services; that a sub-committee was, thus, instructed to cause the conduct of a study on whether or not there is a need for PSI and its related services; that the feasibility of having the importers pay for the fees is an alternative scheme being considered as the General Appropriations Act for calendar year 2000 does not provide any fund for this purpose; that another option or scheme being considered is the accreditation of qualified PSI contractors instead of conducting an international bidding; that, in connection with the first option, wherein payments by the importers may be made either directly to the PSI contractor at a rate to be fixed by the Committee or, to the BOC which shall, in turn, pay to the PSI contractor but retaining a portion thereof to be deposited in a trust fund for the Bureau's account to be used for its computerization program, consultation with the concerned sector is necessary to determine if the importers are willing to pay; and that to resolve any possible legal issue that may arise therefrom, the matter is forwarded to this Department for an "authoritative opinion". llcd The first issue is resolved in the affirmative. The Administrative Code of 1987 (E.O. No. 292) provides as follows: ""SECTION 54. Charges for Property Sold or Services Rendered; Refunds . (1) For services required by law to be rendered for a fee, . . . the head of bureau, office or agency may, upon approval of the Secretary, charge and collect the cost of service, . . . or other rate in excess of cost prescribed by law or approved by the same authority. . . ." (Chap. 12, Book IV) xxx xxx xxx ""SECTION 23. Bureau of Customs . The Bureau of Customs . . . shall have the following functions: (1) Collect custom duties, taxes and the corresponding fees, charges and penalties; xxx xxx xxx 5) Supervise and control exports, imports, foreign mails, and the clearance of vessels and aircrafts in all ports of entry; . . ." (Chap. 4, Title II, Book IV) (emphasis ours) The clear and explicit language of the above-quoted provisions leaves no room for doubt. Subject to the prior approval of the Secretary, the BOC is expressly empowered to collect fees, among others, in connection with the exercise of its powers and functions such as the supervision and control of the export and import activities in all of the country's ports of entry. Nothing is better settled than the rule that when the law speaks in clear and categorical language, there is no room for interpretation; there is only room for application ( Victoria v. COMELEC, 229 SCRA 269; Pascual v. Pascual-Bautista, 207 SCRA 561; Sec. of Justice Op. Nos. 44 and 142, s. 1985, citing cases, and No. 8, s. 1993 ). LexLib Moreover, it is a fundamental rule that an administrative agency like the BOC not only has such powers as are expressly granted to it by law but also has such powers as are necessarily implied in the exercise of its express powers (see, Laguna Lake Development Authority v. Court of Appeals, 231 SCRA 292). Thus, even without the express mandate of law, its power to impose fees, such as fees for PSI and other related services, may be implied not only from its power of supervision and control over import/export activities in all ports of entry but from its express powers to "(e)xercise police authority for the enforcement of tariff and customs laws" and "(p)revent and suppress smuggling, pilferage and all other economic frauds within all ports of entry" (Sec. 23[3 and 4], E.O. No. 292). The effective and efficient exercise of said powers necessarily requires, albeit impliedly, the power to impose and collect service fees. Relative to the second issue raised, it may be stated that the said fees partake of the nature of revenues which, generally, refer to the income of a government or governmental subdivision and include all public moneys which the state collects and receives from whatever source and in whatever manner (see, Fullerton v. Central Lincoln People's Utility Dist., 201 P 2d 524, 526; also, Sec. 3[j-1], Local Tax Code [P.D. No. 231], as amended). Such constitute public funds (see Storen v. Sexton, 200 N.E. 251, 209 Ind. 589, 104 A.L.R. 1359 ). The collection of government revenues, which is done by public officers in their official capacities, cannot be let to a private person (DOJ OPINION NO. 60, s. 1998 citing Op. No. 175, s. 1993). The Government Accounting and Auditing Manual, specifically, Section 65 thereof, provides thus: "SECTION 65. Designation of collecting officers . The head of an agency may designate such number of collecting officers or agents as may be deemed necessary (Sec. 64, P.D. 1445). As a general rule, the collection of revenues and receipts shall be done by the regularly appointed Collecting Officer/Treasurer. prcd In local government units, local treasurers are vested by law to collect and receive all monies accruing to their respective jurisdiction whether in the form of collectible taxes and other revenues or receipts or trust funds pertaining to other branches or units of the government (Secs. 170 and 247, R.A. 7160). Collectors/tellers may also be designated to assist Collecting Officers/Treasurers and they shall turn over their collections daily to the Collecting Officer/Treasurer concerned. Collectors in the field shall turnover their collections on the day they return to the office." Since the fees to be collected by BOC to cover the cost of PSI services constitute public funds, the collection of such fees shall be the duty of the regularly appointed Collecting Officer/Treasurer of the BOC. The second issue is, therefore, answered in the negative. Anent the third issue, it is submitted that a portion of the said fee may not be deposited in a trust fund for the account of BOC for its computerization program in the absence of a law that allows it. cdrep As a rule, subject fees shall accrue to the national government. As provided in Section 55, Chapter 12, Book IV of E.O. No. 292: ""SECTION 55. Disposition of Miscellaneous Bureau Receipts . In the absence of special provision, money collected for property sold or service rendered, and all other receipts or earnings of bureaus, offices, and agencies not derived from taxation, shall accrue to the general unappropriated funds of the National Government." (Emphasis supplied.) Corollarily, Section 29(1), Article VI of the present Constitution states that: ""SECTION 29. (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. xxx xxx xxx Pursuant to the above-quoted Constitutional provision, money from the Treasury cannot be spent absent an appropriation made by law. Congress alone can authorize the expenditure of public funds through its power to appropriate and which carries with it the power to specify not just the amount that may be spent but also the purpose for which it may be spent (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 Edition, p. 723). Being public funds in the national treasury, subject fees or a portion thereof cannot automatically be spent for any purpose without an authorization from the legislature. Hence, said money cannot be deposited in a trust fund for the account of BOC. Relative to the fourth issue, this Department is of the view that accreditation of qualified PSI contractors cannot be undertaken in lieu of an international bidding. Executive Order No. 301 dated July 26, 1987 lays down the general rule as well as the exceptions on public bidding, to wit: ""SECTION 1. Guidelines for Negotiated Contracts. Any provision of law, decree, executive order or other issuances to the contrary notwithstanding, no contract for public services or for furnishing supplies, materials or equipment to the government or any of its branches, agencies or instrumentalities shall be renewed or entered into without public bidding, except under any of the following situations: "a. Whenever the supplies are urgently needed to meet an emergency which may involve the loss of, or danger to, life and/or property; "b. Whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service; "c. Whenever the materials are sold by an exclusive distributor or manufacturer who does not have sub-dealers selling at lower prices and for which no suitable substitute can be obtained elsewhere at more advantageous terms to the government; "d. Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exorbitant or non-conforming to specifications; "e. In cases where it is apparent that the requisition of the needed supplies through negotiated purchase is most advantageous to the government to be determined by the Department Head concerned; and "f. Whenever the purchase is made from an agency of the government." (emphasis supplied) Considering the fact that the situation before us does not fall under any of the exceptions provided under Section 1, above-quoted, it follows that the general rule on the necessity of public bidding applies. Under the familiar rule of statutory construction expressio unius est exclusio alterius , the mention of one thing implies the exclusion of another thing upon which it is to operate, the enumerated exceptions from the requirement of public bidding cannot be construed to include those not expressly mentioned in the enumeration (see, Vera v. Fernandez, 89 SCRA 199). This is especially true if one is to consider the legislative intent of public bidding which is to invite competition and to guard against favoritism, fraud and corruption (see, San Diego v. Municipality of Naujan, Prov. of Mindoro, 107 Phil. 118, 122 , citing cases), enabling thereby the government to avoid or preclude anomalies in the execution of public contracts (see, National Food Authority v. Court of Appeals, 253 SCRA 471, 481 ). Thus, absent any of the scenarios contemplated in Section 1 of E.O. No. 301, it is our view that the requirement of public bidding cannot be dispensed with. Very truly yours, (SGD.) ARTEMIO G. TUQUERO Acting Secretary